S.J.R. 7197, HF210202RO, HD210058RO

                                  STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

          ------------------------------------X  S.J.R. NO. 7197
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. HF210202RO
                                              :             HD210058RO 
                 CLINTON COURT INVESTORS         DRO DOCKET NO.ZAK210545R
                                                 TENANT: JULIA & WILSON GANT

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On April 23, 1993, the above-named petitioner-owner filed a 
          Petition for Administrative Review (hereafter PAR) against an order 
          issued on March 19, 1993, by the Rent Administrator, 92-31 Union 
          Hall Street, Jamaica, New York, concerning the housing 
          accommodations known as 941 Fulton Street, Brooklyn, New York, 
          Apartment No. 3L, wherein the Rent Administrator determined that the 
          owner had overcharged the tenant.  On May 19, 1993, the Commissioner 
          issued an Order and Opinion Rejecting the Petition on the basis that 
          the petitioner did not submit a complete copy of the order being 
          appealed.  Subsequently, the tenants obtained a judgment from the 
          court based on the overcharge finding.  The petitioner-owner by 
          order to show cause moved to vacate the judgment on the basis that 
          it had timely refiled the PAR.  DHCR records confirmed that the 
          owner had timely refiled the PAR under docket number HF210202RO.  
          Accordingly all parties including the tenants and the DHCR consented 
          to remit the matter to the DHCR for a determination on the merits 
          and to vacate the judgment obtained by the tenants.  A court order 
          to this effect was issued on November 17, 1993.

               The Administrative Appeal is being determined pursuant to the 
          provisions of Section 2526.1 of the Rent Stabilization Code.

               The issue herein is whether the Rent Administrator's order was 
          warranted.

               The Commissioner has reviewed all of the evidence in the record 
          and has carefully considered that portion of the record relevant to 
          the issue raised by the administrative appeal.  

               This proceeding was originally commenced by the tenants' filing 
          a complaint of rent overcharge in October, 1986.  In such complaint, 
          the tenants stated that they had first moved to the subject 
          apartment on July 1, 1979 at a rental of $319.00 and had never 
          received a copy of the apartment registration form (hereafter RR-1 
          form).

               The owner was sent a copy of the tenants' complaint on December 
          22, 1986.  On October 21, 1992, the owner was sent requests for 









          S.J.R. 7197, HF210202RO, HD210058RO




          additional information by the DHCR advising it that it was required 
          to submit a copy of the RR-1 Form with proof of service on the 
          tenant by one of the following methods: Tenant's signature 
          acknowledging receipt of the Apartment Registration (RR-1 Form) and 
          showing the date of receipt; or U.S. Post Office "Carrier Route Pre- 
          Sort" service form listing the apartment number and address of the 
          premises; or U.S. Post Office "Acceptance of Registered, Insured, 
          C.O.D. and Certified Mail" Form #PO-3877, signed and dated and 
          listing the tenant's name and address, including the apartment 
          number.  The owner was also informed that DHCR records indicated a 
          failure to file an annual registration with the DHCR for the subject 
          apartment for 1985 and 1986 and the owner was directed to submit 
          proof of such filing.  The owner was also sent a request for 
          additional information on January 19, 1993.

               In a response dated March 2, 1993, the owner stated in 
          substance that there is no requirement in the Rent Stabilization 
          Code that the owner retain proof of service of the RR-1 Form on the 
          tenant and that based on the agency's acceptance of registrations 
          subsequent to 1984, the apartment is deemed registered for 1984.  
          The owner submitted a copy of the RR-1 Form but no proof of service.  
          The owner also stated that there was no rent overcharge because in 
          1976 under docket number 2AR4312-4353, the rent was established at 
          $406.00 per month.

               In Order Number ZAK210545R, the Rent Administrator determined 
          that the owner had failed to submit proof of service of the initial 
          registration on the tenant and failed to file registrations for 1985 
          and 1986 as well.  Based thereon the rent was frozen at the amount 
          of $319.00 and an overcharge of $25,137.09 was found including 
          treble damages.

               In this petition, the owner alleges in substance that the DHCR 
          incorrectly set the initial rent at $319.00 rather than at $406.00 
          as established by the City of New York Department of Rent and 
          Housing Maintenance on November 10, 1976 under docket number 
          2AR4312-4353 due to a substantial rehabilitation and major capital 
          improvement; if at some time subsequent to 1976 the complainant 
          tenant paid less than the legal regulated amount, the owner should 
          not be penalized by the DHCR using a figure other than $406.00 as 
          the legal regulated rent in its computation; that treble damages 
          were improperly assessed since there was no willful overcharge in 
          that the owner was charging less than the legal regulated rent; that 
          the DHCR had a duty to inform the owner of any deficiency in the 
          record such as missing registration filing and such notification 
          must be within the applicable four year limitation on record- 
          keeping; that the DHCR cannot now in 1993 penalize the owner for an 
          alleged omission in 1984; that the subject premises was properly 
          registered in that in 1984 the tenant of record was one "J. Trent"; 
          that Julia Bonita Trent married Wilson Gant Jr. on September 1, 
          1979; that the owner's copies of the registration for 1984 and 1985 






          S.J.R. 7197, HF210202RO, HD210058RO


          indicate that the tenant of record was "Trent,J" so that DHCR's 
          records are confused; that the Rent Stabilization Code in effect in 
          1984 and 1985 did not require that registrations be sent by 
          certified mail; and that the owner's copy of the registration form 
          should be considered as proof of registration in accordance with the 
          DHCR form "Final Notice Requesting Proof of Registration", a copy of 
          which the owner submitted along with its PAR.

               The Commissioner is of the opinion that this petition should be 
          denied.

               The owner's contention that the DHCR incorrectly set the rent 
          at $319.00 rather than at $406.00 is without merit.  It is noted 
          that the rent controlled rent of the subject apartment was set at 
          $406.00 effective February 1, 1976 under docket number 2AR4312-4353.  
          However, the owner was free to charge a lower rent when the 
          apartment became subject to rent stabilization and the records in 
          this case indicate that the owner in fact charged $319.00 upon first 
          occupancy by the tenants herein in October, 1979 and continued to 
          charge this amount until June 1, 1985.  Accordingly, the Rent 
          Administrator correctly determined that the lawful stabilization 
          rent was $319.00.

               The owner's contention that the subject apartment was properly 
          registered in 1984 is without merit.  In order to establish proper 
          registration where a tenant denies receipt of the RR-1 Form, an 
          owner must prove by one of the methods described above that service 
          of the RR-1 Form on the tenant was effectuated.  In the instant case 
          the owner did not submit the required proof of service although 
          afforded an opportunity to do so.  The owner claims that confusion 
          may have resulted due to the fact that the tenant of record married 
          in 1984.  Yet the owner has submitted no proof that said tenant of 
          record was served with the RR-1 Form either in her maiden or married 
          name nor that the tenant of record's husband was served.  Further 
          there is no requirement that DHCR inform the owner of any deficiency 
          in the record such as a missing registration filing within a four 
          year period and the acceptance of later annual registrations by the 
          DHCR does not excuse the failure to file earlier annual or initial 
          registrations.  Further the owner's copy of the registration form by 
          itself is not sufficient proof of service on the tenant.  The DHCR 
          form "Final Notice Requesting Proof of Registration" submitted by 
          the owner, contrary to the owner's allegation on appeal lists 
          "owner's copy of registration form" as one of ten items that may be 
          submitted as proof of registration and states that since the DHCR 
          determination will be made based on the preponderance of the 
          evidence, that the owner should submit as much documentation as 
          possible.  The Commissioner finds that the submission of the owner's 
          copy of an RR-1 Form by itself is not sufficient proof of service of 
          the RR-1 Form on the tenant.

               Finally, the owner has not established that the overcharge was 





          not willful and accordingly, the imposition of treble damages was 







          S.J.R. 7197, HF210202RO, HD210058RO

          warranted.

               The owner is directed to reflect the findings and 
          determinations made in this order on all future registration 
          statements, including those for the current year if not already 
          filed, citing this order as the basis for the change.  Registration 
          statements already on file, however, should not be amended to 
          reflect the findings and determinations made in this order.  The 
          owner is further directed to adjust subsequent rents to an amount no 
          greater than that determined by this order plus any lawful 
          increases.

               The Commissioner has determined in this Order and Opinion that 
          the owner collected overcharges of $25,137.09.  This Order may, upon 
          expiration of the period for seeking review of this Order and 
          Opinion pursuant to Article Seventy-eight of the Civil Practice Law 
          and Rules, be filed and enforced as a judgment or not in excess of 
          twenty percent per month of the overcharge may be offset against any 
          rent thereafter due the owner.  Where the tenant credits the 
          overcharge, the tenant may add to the overcharge, or where the 
          tenant files this Order as a judgment, the County Clerk may add to 
          the overcharge, interest at the rate payable on a judgment pursuant 
          to Section 5004 of the Civil Practice Law and Rules from the 
          issuance date of the Rent Administrator's Order to the issuance date 
          of the Commissioner's Order.

               THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it is

               ORDERED, that this petition for administrative review be, and 
          the same hereby is, denied, and, that the order of the Rent 
          Administrator be, and the same hereby is, affirmed.

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner





                     














          S.J.R. 7197, HF210202RO, HD210058RO
























    

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